North patte certificated

“Sensitivity Training” for North Platte Staff Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase

The Plan for Today

The Plan for Today  How Lawyers took Over Education  Confidentiality of Student Information  Acceptance of Disabled Students  Harassment and Bullying Issues

How the Law took over Education

The Early Day of Public Education  Colonial days: private schooling was the norm  Thomas Jefferson called for a system of public schooling for 20 young boys who could not afford private schooling  He advocated this plan by saying that it would enable them to “rake from the rubbish” 20 promising students

Rake from the Rubbish??  Education has been “raking from the rubbish” ever since  We are a country of immigrants.  Just about every immigrant group was considered “rubbish” when they first got here

Horace Mann  In the 19th century, public education became compulsory  Education was viewed as a moral enterprise  Horace Mann called for school board members to be “sentinels” who should ensure that every teacher is “clothes in garments of virtue”

We Diversify  In the late 19th and early 20th century, America became considerably more diverse in ethnicity, religion, language and culture  Most of the newcomers crowded into the public schools  Some groups set up their own school system  Very little law applied to public schools  “Where there is trust, there is little need for law and regulations” – Jim Walsh

th Mid-20

Century: Times Change

 1954: Brown v. Board of Education  1955: Rosa Parks boards the bus  1957: Mrs. Gump enrolls Forrest in school

th Mid-20

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Century: Times Change

1964: Congress enacts the Civil Rights Act 1969: Tinker v. Des Moines 1972: Congress enacts Title IX 1973: Congress enacts Section 504 of the Rehabilitation Act 1974: Congress enacts FERPA 1975: Goss v. Lopez 1975: Congress enacts precursor to IDEA 1985: New Jersey v. TLO

Law’s Strengths and Weaknesses  Law is good at answering big questions • Does the public school have to serve everyone?

• Should students be granted constitutional protections at schools?

• Should teachers be protected against arbitrary action by boards of education?

Law’s Strengths and Weaknesses  Law is bad at answering small questions • When can school staff discuss a special education student without the parents being present?

• How should schools respond to students being unkind to one another?

• What should a teacher be allowed to say in his/her Facebook page?

What We Need is Balance  System based ENTIRELY on trust will facilitate abuse of that trust.

• It will work well for some but not for all • Will inevitably be in-groups and out-groups

• System based ENTIRELY on law will be ineffective • • • •

Paralysis Conflict Bureaucracy Resources spent on legal disputes not students

What We Need is Balance  We are not going back to the “good old days”  Nor should we  Trust will not govern automatically – it just be earned. We must show ourselves to be trustworthy  We must cultivate virtue in the profession  We must restore the idea that education is a MORAL ENTERPRISE

It starts with YOU  But if you want to cultivate virtue in the kids, you have to demonstrate it yourself  We must all be “clothed in garments of virtue”

 Maxwell  Crete

Three Areas for “Garments”  Confidentiality of Student Information  Acceptance of sped students  Bullying/Harassment Issues

Confidentiality

FERPA  Family Education Rights and Privacy Act (sometimes called “The Buckley Amendment”)  Response to perception of • Secrecy of files from students and parents • Disclosure of information to third parties

What does FERPA do?

Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

What does FERPA do?

Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

What does FERPA do?

Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

What does FERPA do?

Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

What does FERPA do?

Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

What does FERPA do?

Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

What does FERPA do?

Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.

L.S. v. Mount Olive Bd. Of Ed. (D.N.J. 2011)

 Catcher in the Rye Assignment  Parent sued • School • Principal • Teacher • School psych.  Court: teacher and psych personally liable – other school defendants dismissed

Letter to Wolf (FPCO 2011)

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Principal and teacher at volleyball game Parent sued school Parent also filed complaint with FPCO FPCO • “discussion should not have occurred in this public location and [staff] exercised poor judgment in breaching confidence” • Related lawsuit settled

Letter to Anonymous (FPCO 2013)

 Teacher’s practice was to e-mail each student who failed a test with a “remediation form”  Accidentally sent e-mail to entire group  Asked FPCO for guidance  FPCO • Violation of FERPA • Contacted school • Launched an investigation

Letter to Anonymous (FPCO 2013)

 Two school board members at board meeting discussing issue with sons  Parent filed complaint with FPCO  FPCO • Violation of FERPA • Emphasized broad definition of “school staff”

Acceptance of Disabled Students

Interesting SpEd Trends  Starting in 1973, students identified as disabled steadily increased every year  Population of students with disabilities peaked in 2004-05 at 6.72 million, comprising 13.8 percent of the nation’s student population • In 2005-06 special-education participation numbers began to decline • Currently 13.1 percent of all students nationwide are identified as disabled

Interesting SpEd Trends  Categories of disabled students also shifting: • SLD declined from 6.1 to 4.9 percent of all students nationwide • Mental retardation dropped from 1.3 to 0.9 percent of students • Autism quadrupled from 93,000 to 378,000 • OHI more than doubled from 303,000 to 689,000

Victoria Ind. Sch. Dist., (Tex. 2010)

 Student with fetal alcohol syndrome, developmental disability • Academically 3-4 years behind peers • Disruptive and non-compliant: fighting, tardy, walking out of class

 Parent told counselor family was considering residential placement because student was difficult at home as well

Victoria Ind. Sch. Dist., (Tex. 2010)

 Teacher e-mail #1: "Please promise that IF [student] DOESN'T get into a home somewhere that YOU will still insist that student goes to [a different] campus [Student] is very hateful to [aide] and myself ... Things have not improved at all.

Student picks at those student can intimidate and I will have still have [sic] my other students next year and the personalities are clashing big time. I am so sorry I have to tell you but I can Not deal w/[student] much longer.

I am trying to hang in until the end of May but I may have to take a medical leave if I don't get some relief.

Victoria Ind. Sch. Dist., (Tex. 2010)

 Teacher e-mail #1 (con’t): [The counselor] will not help you, do not be fooled, she is pussy footing around. [Principal] cannot help you, the District WILL NOT help you financially. You are wasting your time by contacting [ special ed director] or [superintendent]. [Special ed director] is a sweetheart but they have NO intention of putting money out for [student]. They are stalling, trying to pacify you. YOU know that I can bet my life on it.

Victoria Ind. Sch. Dist., (Tex. 2010)

 Teacher e-mail #1 (con’t): They are NOT going to fork out money ... they have already put a hold on any new special ed teachers being hired ... they have got to pay for those two new high schools. If you don't believe it call some school board members ... which by the way we need to vote them off!!!

Victoria Ind. Sch. Dist., (Tex. 2010)

 Teacher e-mail #2: "I havn't called you but DAILY [student] is [tardy] 2 or more times and constantly late from lunch.

[Student] told me that student would f*ck me over ... student said it to me in class ... I should have written student up BUT they won't do anything about it so what is the use? I am sick and tired and I am sorry that [student] is on my last nerve … One day someone is going to knock student's socks off …. A regular ed kid will do student in, if not some thug if student acts that way with them.

Victoria Ind. Sch. Dist., (Tex. 2010)

 Teacher e-mail #3: "Please, please send student to the [ ] campus next year if you can't afford a home for student. Maybe they can help student, I can't help student behaviourly [sic].

[Student] needs to be in a behavior unit with a strong personality Male teacher. [Student's] ways are beyond me. I am sorry."

Victoria Ind. Sch. Dist., (Tex. 2010)

 Teacher said she was just frustrated when she e-mailed  Parent requested an 1:1 aid for student.  Teacher: won’t make any difference “student does what he wants once he’s made up his mind”  Parents privately placed, sued school

“Sensitivity Training” for North Platte Staff Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase